Standing Committee A

[Mr. Frank Cook in the Chair]

European Parliament (Representation) Bill

Clause 2 - Recommendations by Electoral Commission - relating to changes in number of United Kingdom MEPs

Amendment proposed [this day]: No. 3, in 
clause 2, page 2, line 29, leave out from 'region' to 'MEPs' and insert 
 '(other than Northern Ireland) is allocated at least four'. [Mr. Heath.]
 Question again proposed, That the amendment be made.

Frank Cook: I remind the Committee that with this we are discussing the following:
 Amendment No.4, in 
clause 2, page 2, line 29, leave out 'and' and insert— 
 '(aa) Northern Ireland is allocated at least three MEPs; and'.
 Amendment No.10, in 
schedule, page 13, line 14, after 'least', insert 
 'four MEPs, except that Northern Ireland is entitled to be allocated at least'.
 I also remind the Committee that under the terms of the resolution agreed on Tuesday our proceedings to the end of clause 7 must be brought to a conclusion by 5.30 pm today.

William Cash: We are dealing here with something that the Deputy Speaker was anxious, for a variety of reasons, that we should not discuss on Second Reading. The ingenious drafting of the hon. Member for Somerton and Frome (Mr. Heath) has produced an amendment that gives us an opportunity to examine methods of election.
 At least one other hon. Member in this Room is a member of the European Scrutiny Committee and he will recall that we produced a report last June in which the method of election to the European Parliament was discussed. In a nutshell, the Committee decided, after a vote, to delete proportional representation for election to the European Parliament in its application to the United Kingdom and wisely advocated a return to the first-past-the-post system. I do not know whether the hon. Member for Somerton and Frome knew about that, but it was interesting because no one could say that the Government's party was not well represented on that Committee with a substantial majority. The bottom line is that that demonstrates that, irrespective of what may be contained in the treatiesI recall the provisions in the treaties covering uniform electoral procedurethere is advocacy, combined with an element of compulsion. I cannot say that it is absolute, but that is the sort of generality of the position. 
 To say the least, the hon. Gentleman is sensibly bringing to the Committee's attention the notion that the Electoral Commission shall review the current method of election of MEPs and then assess the efficacy of the various methods. The trigger for the hon. Gentleman's objectives is that reference is then made to ensuring proportionality, accountability and effectiveness of representation, and he follows that up [Interruption.] This is not the same amendment?

David Heath: No.

William Cash: If I am speaking to the wrong amendment, I apologise and am happy to give way.

David Heath: I do not want to steal the hon. Gentleman's thunder, but his comments on new clause 1 should properly be made in our subsequent debate. At the moment, I am simply dealing with the floor number of representatives for each region.

William Cash: In that case, I am happy to return to the matter later.

David Heath: I am grateful to the Minister for her earlier considered reply to my comments. She said that she would examine more carefully the implications for smaller constituencies of the system that the Government have chosen to use. That was a positive statement by the Minister.
 The Minister said that the basis of the Bill was uniformity across the United Kingdom. That is transparently not the case under the present system because of the difference in Northern Ireland. One cannot equate the three members voted for a province of Northern Ireland with the rest of the United Kingdom, because they are elected on a totally different basis, for historic and current political reasons that we all understand. There is a good argument for using that system in Northern Ireland. Some would say that there is an argument elsewhere, but that is a different argument. 
 If we ask officials to do the calculations, we can see whether, as we suspect, a bigger discrepancy is built into the system when we get down to three representatives. If there is, as the Minister correctly says, the trade off is then between that and the fact that a floor greater than three will produce a difference in the level of representation between different regions of the United Kingdom. I contend that that is less of an evil than not to have represented at all a political persuasion that is substantially represented in that region by the votes cast. That seems an appropriate trade off. We shall clearly need to come back to it later. I shall leave the Minister to reflect further on what I have said. On that basis, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

William Cash: I beg to move amendment No.19, in
clause 2, page 2, line 34, at end insert— 
 '(aa) shall be debated by each House on a substantive motion; and'.

Frank Cook: With this it will be convenient to discuss the following:
 Amendment No.31, in 
schedule, page 13, line 21, at end insert 
 'and shall be debated by each House on a substantive motion.'.
 Amendment No.32, in 
schedule, page 14, line 12, after 'House', insert 'on a substantive motion'.

William Cash: These are substantially the same amendments applied to different parts of the Bill. In particular, they would ensure that a debate was held where motions are recommended by the provisions in the Bill.
 Amendment No. 19 proposes that the recommendation that we discussed this morning would have to be published by the Electoral Commission and laid before Parliament by the Lord Chancellor. Furthermore, it would cease to have effect at the end of a year after the day on which it was made. As far as I can see, there is no requirement for the matter to be debated. In view of the importance of this issue and in the interests of democracy, which I discussed this morning, any such recommendation should be debated. I have also included in the amendment the words ''on a substantive motion'', so the matter could not be debated simply in an Adjournment debate. 
 In a discussion this morning with the hon. Member for Somerset and Frome I discovered that he had had experience of a free vote—an unusual creature. In relation to much that takes place in the House, as I have said in a number of debates, and I have been supported by the former Chief Whip of the Labour party, the whipping system has got somewhat out of control. Given that we would expect to have a whipped Second Reading debate, when we are in Committee there is a great deal to be said for drawing on the brain power of members of the Committee and not treating them as if they were brain-dead automatons who cannot say anything. Actually, they often have a lot to say, but usually in private. We could make some useful advances in the reform of Parliament if we were to go down that route. For the time being, I will have to be content with a substantive motion and relying on the integrity of Members of Parliament in deciding whether in a given case they should rebel against their Whips and the Government, as some of us have found it necessary to do in the past on European issues. As we discovered this morning, the recommendation is very important, but there is no reason to go back over that ground. However, it should be debated properly when it emerges. 
 Amendment No. 31 relates to the schedule. A similar point arises with respect to the report, which must be published by the Electoral Commission as soon as possible after 1 May in a pre-election year in discharging its obligation to carry out a review of the distribution of MEPs between the electoral regions. Afterwards, it has to report its conclusions to the Secretary of State, not the Lord Chancellor, but we have been into that already. Paragraph 1(4) of schedule 1A states that 
''The report must be published by the Commission and laid before Parliament by the Secretary of State.''
 I shall not repeat the arguments that I have already given, and the amendment, which states that the report 
''shall be debated by each House on a substantive motion'',
 speaks for itself. It would not be good enough simply to lay that kind of report before Parliament, unless the Minister can assure me that it would automatically be debated. I should like an explicit clarification of that point. 
 Finally, amendment No. 32 relates to paragraph 3 of schedule 1A, which states: 
''Where a recommendation under paragraph 1(3) is made to him, the Secretary of State must''—
 I am glad to see that provision, which I have mentioned before— 
''lay before Parliament a draft of an order giving effect to the recommendation by amending any of the numbers specified in section 1(3); and . . . if the draft is approved by resolution of each House, make an order in the terms of the draft''.
 Amendment No. 32 would add the phrase ''on a substantive motion'', but that might not be strictly necessary because I suspect that a resolution would be a substantive motion, so we do not have to worry about it too much. Perhaps some explanation is needed as to why we have a recommendation under that schedule that is bound to be dealt with by an affirmative resolution, whereas the recommendation of the same Electoral Commission with respect to the point on clause 2 that I made at the beginning—the fact that the recommendation 
''must be published by the Electoral Commission and laid before Parliament by the Lord Chancellor''—
 is not subject to the affirmative resolution procedure. That perhaps illustrates my point that, for some reason on which I should like to hear more, there is an apparent inconsistency in the procedures to be followed for similar recommendations made by the Electoral Commission in different circumstances. That seems a little odd. I shall be interested to hear what the Minister and the hon. Member for Somerton and Frome have to say.

David Heath: There is a basic procedural principle in this House that matters of a constitutional nature are debated on the Floor of the House. Previous matters relating to European parliamentary elections have been dealt with in a Committee of the whole House, but this debate has been referred to a Standing Committee. It is a sound principle that a proposal that changes either the basis or the operation of an electoral system should be agreed by the whole House.
 I pray in aid the support of the Secretary of State for Foreign and Commonwealth Affairs who said: 
''There is a very good reason why it should not be possible to change the voting system by statutory instrument. We are dealing with fundamentals of our democratic system, and it would be wrong to change them by statutory instrument.''—[Official Report, 10 November 1998; Vol. 300, c. 208.]
 We have here a proposal to do precisely that. The hon. Member for Stone (Mr. Cash) has suggested that we at least ensure that there is a debate on the Floor before such a change is made, which seems entirely 
 appropriate. I shall be interested to hear why the Minister feels that that might not be necessary.

Yvette Cooper: I shall try to limit my remarks, as I am conscious that the guillotine will fall at 5.30 pm, as we have all agreed. We still have time to cover the remaining clauses and amendments, but we have already had some extensive debatesI shall not call them perambulationson issues surrounding the Lord Chancellor's constitutional status and the detailed extent of Community law. I think that sentencing policy even cropped up at one point.
 The Bill provides for the report produced by the Electoral Commission on the redistribution of MEPs to be laid before the House. The Lord Chancellor will lay a draft order before Parliament and he cannot propose anything in that order that does not follow the recommendations in the commission's report. The order is then subject to the affirmative resolution procedure, which is a substantive motion of the House requiring debates in both Houses of Parliament. Clause 5(3) says that the order may not be made 
''unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.''
 Parliament will therefore have a debate and vote on the commission's proposals.

William Cash: I was referring to clause 2. Clause 5, to which the Minister has just referred, is supplementary and clearly says:
''This section applies to orders under section 4'',
 not to those under section 2.

Yvette Cooper: That is indeed the case but, as I said a couple of seconds ago, the Lord Chancellor cannot propose anything in that order that does not follow the recommendations contained in the Electoral Commission's report. The hon. Gentleman's amendment calls for the commission's report to be put before Parliament, for a debate on a substantive motion on that report and for the order that has to implement the commission's recommendations also to be put before Parliament, which will effectively have the same content as the commission's report. That will be turned into the order, which will be put before Parliament under the affirmative resolution procedure. The amendment would create duplication, and would mean a delay in the process. Parliament will have the opportunity to debate and vote on the proposals made by the commission when it is introduced in an order.
 The reason for using the affirmative procedure is relatively standard. We are debating a piece of primary legislation on the principles behind the order. The order will include the recommendations of the Electoral Commission, and it is right that those are drafted by the independent commission. If any Opposition parties feel strongly enough about that, they can propose that the matter should be the subject of an Opposition day debate. The reasons are relatively straightforward. There will be an affirmative resolution procedure for the order, and the affirmative resolution procedure applies for the schedule as well.

William Cash: If the Minister has a conclusive answer to
 the questionunlike on some of the other matters, where we have not had any answersI shall be the first to admit it. In the light of her remarks, which I shall study when I have an opportunity to do so, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to take new clause1Recommendations by Electoral Commission relating to methods of election of United Kingdom MEPs
'(1) Before making any recommendation as to the distribution of MEPs between the electoral regions under section 2, the Electoral Commission shall— 
 (a) review the methods of election of MEPs currently used; 
 (b) make an assessment of the efficacy of the methods of election in ensuring (i) proportionality; (ii) accountability; and (iii) effectiveness of representation; 
 (c) make such recommendations to the Lord Chancellor as it shall determine. 
 (2) A recommendation under this section must be published by the Electoral Commission and laid before Parliament by the Lord Chancellor.'.

Yvette Cooper: I propose that clause 2 stand part of the Bill, but we reject new clause 1, which is proposed by the hon. Member for Somerton and Frome.
 New clause 1 would ask the Electoral Commission to engage in what would inevitably be a long and complex review of a system that Parliament put in place only five years ago, after protracted debate, and under which only one election has taken place. It would delay its work on the redistribution of MEPs to a point where it would be very difficult to put the timetable in place for the 2004 elections. 
 I understand that the hon. Gentleman wants to raise issues concerning the voting system, and has a different view about the voting system that should be in place. I understand that the new clause is an attempt to pursue that. However, those issues go far wider than the Bill. The Bill does not address them, and it is appropriate that it does not. It is appropriate that the Electoral Commission should not be held up in the important work of sorting out the distribution of MEPs in time for the 2004 elections. 
 Clause 2 establishes the mechanism for the reviews of the distribution of MEPs to take place when the change in numbers has been agreed or is anticipated. It gives the Lord Chancellor the power to require the Electoral Commission to make recommendations in a specified period about the distribution of the total number of MEPs in the UK regions. It is important that the redistribution is in place in advance of the 2004 elections. It is right that the Electoral Commission should play the role of making the recommendation on the distribution given its other responsibilities and its independence. It will be a relatively tight time scale, but ultimately it operates within the framework of the treaty of Nice, which has been ratified by Parliament.

David Heath: I rise to speak to new clause 1. The hon. Member for Stone will have the opportunity to say what he wants to say about the voting system.
 I hear what the Minister has said, but it is transparently obvious to many people that there is a great deal of concern about the operation of the closed list system. It has been brought into disrepute for precisely the reasons that it was rejected on possibly three occasions, certainly twice, by the upper House when the European Parliamentary Elections Bill was under consideration in 1998. 
 The Bill went to the wire. There was a great deal of doubt as to whether it would complete its parliamentary passage in time. A majority in the upper House—Liberal Democrats, Conservatives, Cross Benchers and some who took the Labour Whip—felt that an open list system would have been a better option for achieving the Government's aims in reforming the European Parliament election system. I can do no better than to quote the Lords reason for insisting on their amendments, which were debated on 10 November 1998: 
''Because electors should be able to vote for the individual party candidate of their choice.''—[Official Report, House of Lords, 10 November 1998; Vol. 594, c. 206.]
 The problem with the present closed list system is that it puts far too much power in the hands of the party machine rather than of the elector in determining which competing candidates from a given single party shall be elected. It also puts an improper pressure on MEPs to address their attentions too much to the primary electorate which is, in their case, the membership of their party, rather than the wider electorate who can vote only for a party list. 
 For those reasons, we believe that the party list system is less good than the single transferable vote and the closed list system is inherently worse than an open list system, which would at least give the electorate the opportunity to express their choice between candidates. 
 I understand the Minister's saying that the scope of the Bill is limited to what is contained in the treaty of Nice and why she would not want to delay the process unnecessarily. However, this is an opportune time to review the system. In 1998, the then Home Secretary offered an early review as a concession. Since then, we have had further experience of what the system means for MEPs. 
 I am disappointed that some of the brightest and best MEPs are expressing concern that they are not part of a properly democratic system and are returning to domestic politics or going elsewhere. Some long-standing MEPs have found themselves running foul of their party list system and find that they will not be able to seek re-election under the next European Parliament elections simply because they have displeased someone within the hierarchy and apparatus of their own party.

William Cash: Would the hon. Gentleman care to elaborate, perhaps by reference to Labour party MEPs? He may recall that some people have actually
 been dumped because they had the temerity to express views that were inconsistent with those of the great panjandrums who run the outfit.

David Heath: That is undoubtedly the case, but the hon. Gentleman's party is not alien to that process.

William Cash: Some of us survive.

David Heath: I have seen the system at work in the lists in the south-west region. The new Conservative list places the person who was at number one at number four or five.

William Cash: That decision was arrived at democratically. There was no closed-system meeting.

David Heath: I do not want to explore the depths and thickets of the Conservative electoral process.
 It is important that we have a system that best matches the aspirations of the electorate and the democratic accountability that we have in this country. I am not convinced that we have that at present. We seem to be developing a constitutional mosaic, in which there is a different electoral system for every tier of elections. I am not sure that that is a good thing. My party has a very clear preference as to the best solution, as do others— I accept that there are different opinions about it. I am not persuaded that that is a good way to attract and maintain higher turnouts in elections because every time we go to the ballot box there will be a different system of election, which we may not understand. This system has merit in providing approximate proportionality and demerit in not providing individual accountability for the electorate. 
 Sitting suspended for a Division in the House. 
 On resuming—

David Heath: As I was saying before we were interrupted, there is a case for reviewing the system. The obvious independent body to do that is the Electoral Commission. While it is looking at the operation and distribution of seats, it is perfectly proper for it to receive and look at representations on the operation of the system. I accept that it is unlikely to be able to make detailed recommendations on changes of operation and to enact them before the next European Parliament elections, but that is not necessarily the deadline to which it would have to work. The new clause would simply require it to begin the process before allocating the seats.
 I understand that the Minister does not want that to happen. She made that clear on Second Reading and has made it clear again today. In the interests of brevity I do not ask her to repeat it yet again, because I doubt that she will have changed her mind in the meantime. I am content to consider whether to move the Second Reading of the new clause at the appropriate moment. Meanwhile, we can continue the clause stand part debate and, I hope, reach a conclusion.

William Cash: I want first to refer to the arrangements in new clause 1, some of which I have already covered. I
 said that the European Scrutiny Committee would prefer us to revert to a first-past-the-post system. I was about to consider what the arrangements set out in the new clause would involve. I am concerned not only about the closed list system but about the party list system.
 The hon. Member for Somerset and Frome said—

Frank Cook: Order. I am somewhat nervous that we may stray into areas that we should not consider today. As I read the new clause, it simply seeks a decision to engage in the review and look at the different systems. I have no intention of allowing various different systems to be discussed and evaluated today. That is clear to all members of the Committee, is it?

William Cash: I accept that ruling, Mr. Cook, and simply add this. In considering the recommendation that the Electoral Commission would arrive at, we must remember that some arrangements under the present system give rise to difficulties and, as I said, can lead to tyranny. In certain European countries, if people disagree with their leaders' proposals they can be removed from the list. If someone disagreed with Chancellor Kohl in Germany, for example, they were struck off the list and that was that. Of course, he has gonehe appears to have fallen on his sword. Having said that, the reality is that there are many objections to the way in which the system functions, and the hon. Member for Somerton and Frome has done us a service.
 The hon. Gentleman also referred to what happened when the European Parliamentary Elections Bill of 1997—98 failed. As he pointed out, it was thrown out by the House of Lords, and subsequently brought in under the Parliament Acts procedure on 14 January 1999. Although it might be interesting, it is unnecessary to engage in a fuller discussion about the relative merits of those systems, particularly given what the European Scrutiny Committee has to say. Its report will be debated fairly soon, in which case an opportunity to go into some of those questions may arise. 
 All I need do is say that I am grateful for the opportunity to register my few points. In conclusion, I thank the hon. Gentleman for seeking to get something off the ground, which did not quite succeed. 
 Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 10, Noes 3.

Clause 2 ordered to stand part of the Bill.Clause 3

Clause 3

Section 2: meaning of ''elector''

Section 2: meaning of ''elector''

Question proposed, That the clause stand part of the Bill.
Mr. Heath: In clause 3(2), the relevant date is specified as 1 December. Clause 15(4) contains a relevant date with regard to Gibraltar. Is there a coincidence between the two dates? Can the Minister assure me that the relevant date for the purpose of Gibraltar will be before or simultaneous to the relevant day with respect to clause 3?
Yvette Cooper: I cannot answer the hon. Gentleman's question immediately, partly because I am not entirely sure what it was. I think that he was referring to clause 9 and the date of 1 September 2003. Is that right?
Mr. Heath: I was referring to clause 15(4), which specifies a ''relevant date'' as far as an application for registration in the Gibraltar register is concerned. I am trying to ascertain the relationship between the ''relevant date'' and the ''relevant day'' specified in clause 3, which relates to registration for the overall franchise for the European elections.
Yvette Cooper: The day specified in clause 3 sets the electoral register so that the Electoral Commission can get on and work out the distribution of MEPs. It sets the electoral register as the being the register on the preceding 1 December. It will include United Kingdom and Commonwealth citizens and citizens of the Irish Republic resident in the UK who are entitled to vote. Members of the House of Lords and citizens of other member states who have registered to vote in the UK are entitled to vote in European elections.
Clause 15 refers to registration in Gibraltar. It is not related to the register for the calculation of the distribution of MEPs for exactly the same reason that we discussed earlier when the hon. Gentleman wanted to add the word ''Gibraltar''. I explained then that, because of the time scale, the two processes have to be carried out in parallel and therefore cannot relate to each other. The electoral register for Gibraltar will have to be put together separately and there will be separate dates in order to get the Gibraltarians registered in time for the 2004 elections.
Question put and agreed to. 
 Clause 3 ordered to stand part of the Bill.

Clause 4 - Orders implementing changes in the - number of United Kingdom MEPs

William Cash: I beg to move amendment No.23, in
clause 4, page 3, line 28, leave out '(4) to (6)'.

Frank Cook: With this it will be convenient to discuss the following amendments:
 No.27, in 
clause 5, page 4, line 1, leave out subsections (4) to (7) and insert— 
 '(4) If a motion for the approval of a draft order is rejected by either House or withdrawn by leave of the House the Secretary of State shall not recommence the procedures provided under sections 2 to 5 of this Act.'.
 No.35, in 
schedule, page 14, line 21, leave out paragraph 4 and insert— 
 '4. If a motion for the approval of a draft order under paragraph 3 is rejected by either House or withdrawn by leave of the House the Secretary of State shall not recommence the procedure under the Act.'.

William Cash: The clause, which relates to orders implementing changes in the number of UK MEPs, troubles me. We have been through the arguments about the manner in which changes are due to take place and objections have been stated. Clause 5(4) states that if a motion for the approval of a draft order, containing the arrangements of which I have been so critical,
''is rejected by either House or withdrawn by leave of the House the Lord Chancellor may, after consulting the Electoral Commission, alter the draft order.''
 Clause 5(5) states: 
''the Lord Chancellor may not, without the consent of the Electoral Commission, alter any amendments to section 1(3) of the 2002 Act contained in the draft order.''
 Clause 5(6) states: 
''The Electoral Commission may not give its consent under subsection (5) unless it is satisfied that the distribution of MEPs proposed by the altered draft order could have been recommended under section 2.''
 Clause 5(7) states that a 
''statutory instrument containing an order that is not subject to approval . . . under subsection (3)'',
 which is an order containing amendments to section 1 of the 2002 Act, is subject to annulment procedure. 
 What will happen if either House—the House of Commons or the House of Lords—decides that it does not like the arrangements produced? We must bear it in mind that the whole procedure begins with a Council of Ministers decision based on part of a protocol, which will already have been decided by majority vote and the provisions of which cannot be changed because it ''shall'' have ''effect''. Following that, the European Commission may or may not become involved in the process; according to the explanatory notes it will ''inform'' the Government, so the Lord Chancellor will then take his marching orders and the subordinate Minister will have to bring an order before what the Commission would like to believe is a provincial assembly, in order to implement arrangements that have been agreed, of course, without a referendum. We called for a referendum on the Nice treaty, but that was rejected. 
 We are here really talking about the democratic will of individual states, whether accession states or member states. The procedure of co-decision in the European Parliament means that it has a dramatic impact on the way in which we live our lives and are legislated for. All this paraphernalia is actually about some very simple questions. Who governs us and how is that done? What is the democratic will, and has the democratic deficit, to use that much-vaunted expression, been removed? From what I have been saying, the Committee might gather that I regard the democratic deficit to be alive and kicking. This provision is a very good example of that. It is monstrous that a Bill should give the Lord Chancellor such powers, when they could have been 
 exercised in a much more transparent and efficacious fashion. 
 Turning to what will happen when the procedure does ultimately reach the lower echelons of the provincial legislative arrangements that this House of Parliament is deemed to represent—I find that an astonishing thought, but that is what things seems to boil down to—we have some acknowledgement that the arrangements could be rejected. There is a provision that says: 
''If a motion . . . is rejected by either House or withdrawn by leave of the House the Lord Chancellor may, after consulting the Electoral Commission, alter the draft order.''
 So we are back to square one. Here is yet another twist and turn in the charade to which we are being subjected. We will be allowed to discuss arrangements, but not to arrive at any settled conclusions. 
 I hope that some Labour Members will be open-minded enough at least to acknowledge that there is something seriously wrong with a procedure that goes through such convoluted mechanisms to no effect. The bottom line is that it is a charade to be legislating on a matter that in itself determines the manner in which we legislate and exercise power, which is dependent on such things as how many MEPs there are and what coalitions and alliances they have entered into. At bottom, when we scratch away all the surface, as on one of those scratch cards, we will find just about zero.

David Ruffley: I fully support my hon. Friend's arguments. For my benefit, and perhaps that of the whole Committee, will he expand on what the next step would be if amendment No. 27 were made? That would mean that the order would fall and there could be no recommencement of procedures.

William Cash: Yes. We have legislative time in this House to deal with such matters properly. We did not vote against the Bill on Second Reading because at bottomalthough I doubt whether the Minister will understand this, coming from mewe appreciate that we have to comply with our international obligations. I might like to see those renegotiated, become more transparent and be more democratically passed, but certain arrangements have been made, and although my whole party and I would have liked referendums on such important questions, we acknowledge the fact that the law is the law for the time being until we can be fortunate enough to do something about it.
 Having said that, the answer to my hon. Friend's question is yes, we would be unable to recommence the procedure, but I anticipate that at that point another Bill would have to be introduced to deal with the matter more democratically. To take up the point that the hon. Member for Somerton and Frome and I made under earlier amendments, that might perhaps be more precise about what is or is not Community law and address the questions on the accession treaties to which we have still not had very satisfactory answers. We do not yet know how many countries will become member states. We do not know what the outcome of the referendums in those countries will be. 
 The Bill is based on a hypothesis, and for all the reasons that I have already given, if the proposals end up being rejected by either House after a full-blown debate, there would be a case for saying that we should go back and recalibrate the system rather than recommencing a procedure that had, by definition, been rejected by the House of Commons or the House of Lords. The very fact that such a situation can arise presupposes that there could be such a rejection.

David Ruffley: The more that I hear from my hon. Friend, the more I like the amendment. Will he explain whether the renegotiation at which he is, I think, hinting, would be carried out by the Government going to the Council of Ministers, or by some other mechanism?

William Cash: We know that renegotiations have taken place. I think that I am right in saying that the Prime Minister himself has used the word ''renegotiation'' recently. There are circumstances in which that becomes absolutely essential. The word ''renegotiation'' used to be treated with contempt but it is now becoming common parlance.
 The Minister might have the satisfaction of sitting there and thinking, ''Well, he can go on about this until the cows come home but he is not going to get any of these arguments through because the whole matter has already been determined by the Government's majority.'' I should be interested to know whether this provision is based on anything in the Labour party manifesto, but that is another story. The Labour party is in government and we accept the fact that while the rule of law must be obeyed, matters will go with the Government's majority. However, that is not to prevent us from criticising the manner in which the Government have made a law, from exposing matters that require further explanation or from putting down markers about what we think could be done if either House of Parliament decided, in its wisdom, to reject or withdraw such an order. 
 I am grateful to my hon. Friend for intervening. I re-emphasise that the amendment has not been tabled on the basis that I would regard the whole process as having come to a complete halt, and it should not be so construed. However, it would provide an opportunity, should those arrangements be rejected by Parliament, to introduce something to which I am sure that we would speedily assent and that would go through the parliamentary processes extremely quickly. However, that is to rely on what I have come to realise is merely a faint hope, which is that the Government will listen to what we say.

David Heath: Throughout these proceedings, it has been clear that there are occasions on which the hon. Member for Stone and I share concerns about aspects of the Bill that we want to explore with the Minister. However, we part company when he places a nuclear device under the Bill, primes it and then steps asideor sits astride it, as I suggested earlierand I am afraid that this proposal is another nuclear device.

David Ruffley: A pretty good one.

David Heath: Well, it depends on the objective. If someone's objective is to ensure accession of a large part of central and eastern Europe to the European Union, they will not want a nuclear device; they will want to
 ensure that the House can legislate effectively.
 The hon. Member for Stone has been entirely honest about what happens. The recommendations of the Electoral Commission may not find favour with the House. I think that unlikely, but clearly it could propose something that no one finds satisfactory. It may decide that the south-west of England should have 60 Members and the rest are to be distributed around the rest of the country, which may feel short-changed by that. We may feel slightly over-represented and vote even more vigorously against having that many Members of the European Parliament. Whatever the case, there must be a way in which the House can express its opinions on the Electoral Commission's recommendations, and that is provided for. 
 The Bill also provides for a feedback loop, which enables the Lord Chancellor, having taken into account the House's views, to return with revised proposals. However, it does not give him the opportunity to create his own alternative without the Electoral Commission being happy that it falls within its independent assessment of what is appropriate for the country.

William Cash: It is a relatively small point, but that is the arrangement already. It is not as if, with the revised version, the Lord Chancellor is given greater power. He is subjected to the same requirement to comply with what the Electoral Commission says in either event.

David Heath: That is the case as the Bill is drafted. If the hon. Gentleman's amendment were successful, however, that option would be closed off and the Lord Chancellor would be unable to return with alternative proposals. The Bill would in effect be dead, and the only way in which the Government could secure our compliance as a country with our treaty obligations would be to introduce new primary legislation to give effect to what was in the Bill. I am not sure that that is a sensible way to legislate. Whatever deficiencies the Bill has, safeguards are built into it in the event that the House exercises its democratic will and decides that the Electoral Commission has produced proposals up with which it cannot put.
 I reject the hon. Gentleman's suggestion that the Bill and the mechanism for determining our representation in the European Parliament should die with the first effort on the part of the Electoral Commission. Primary legislation would have to be introduced late in the process, which would almost certainly mean that we were unable to comply with our treaty obligations or to secure the election of Members of the European Parliament in the time scale required for the next election. We would be cutting off our nose to spite our face. I am sorry, but I simply do not regard the mechanism suggested by the hon. Gentleman as sensible.

William Cash: I hear what the hon. Gentleman says, but there are features of this Bill—he has agreed with me on a number of them—which deserve censure and criticism. That leads to the question of proportionality. We are obliged to implement what has been decided, although we would have preferred it to be subject to a referendum.
 There is a reduction. There are important democratic questions here. I emphasise that my suggestion is without prejudice. Being severely critical of the mechanisms that are being employed in this Bill and the arrogance that lies behind much of it, I expect that we would give a speedy response to any future proposals, in the event that Parliament rejected them. That is why I do not believe it is a nuclear device, in the sense in which the hon. Gentleman uses the term. That is the key point. It is not just a question, as he said, that they would be killed off by some arrangement that I have in mind. The House would decide whether the arrangements were unworkable and wrong. Because the protocol is already in law, there is no way of avoiding the fact that it is already binding upon us, although I have reservations about aspects of the argument in general concerning the application of Community law in every respect.

David Heath: The hon. Gentleman is intervening.

William Cash: Yes, I am intervening.

David Heath: I am grateful for that intervention.

Frank Cook: And for the following chapter.

David Heath: And for the relevant supporting material.
 The problem is that the result would mean less scrutiny, not more. I would reduce the time. Because of constraints of the time scale, it would give Parliament, the Government and the Electoral Commission less time to effect the changes, to consult upon them and to debate them effectively. That is why I reject it. 
 We have to comply with our treaty obligations. Those of us who want to see accession take place at the earliest opportunity also have a responsibility to ensure that we achieve the necessary changes. The hon. Gentleman has referred several times to his wish to have a referendum on the Nice treaty. I am a strong supporter of referendums on European matters when they make significant changes to our constitutional arrangements. I would have argued, and did so elsewhere, for a referendum on Maastricht when it was rejected by the Government. I have always argued for a referendum on the euro, at a time when other parties were rejecting the idea. 
 In the case of the Nice treaty, I still do not see the major constitutional implications he describes that would have merited a referendum in that instance. However, there are occasions when that would be entirely appropriate. 
 Irrespective of whether or not we have a referendum, we have proposals that must be in place at a certain time. I want to improve the Bill and, as far as possible, accountability in the context of the Bill. However, I am not prepared to lose the context in which we can reach a decision in order to allow enlargement to take place on the present timetable. That is a consequence of the hon. Gentleman's amendment, which is why I will not support him if he presses it to a vote this afternoon.

Yvette Cooper: These amendments do not deal with proposals to renegotiate entirely the
 treaties of Amsterdam and Maastricht, and neither will I. Nor will I address the many points of misinformation that the hon. Member for Stone included in his speechwhich I have previously correctedsuch as his reference to the roles of the European Commission and the Council. I will concentrate on the amendments.  
 The hon. Member for Somerton and Frome clearly explained the role that the amendments would play and the problems that they would cause. We put into the Bill this extra bit about what would happen under clause 5(4) if the draft order is rejected because the Electoral Commission will have to make a recommendation that will involve some approximations and rounding up and down and, once it has done the maths and made its recommendation, it is possible that at the margins there may be two—or theoretically more—different distributions that achieve the aim that is set out in clause 2(4)(b), which is to ensure that 
''the ratio of electors to MEPs is as nearly as possible the same in each electoral region.''
 It is theoretically possible that a similar result could be achieved with the final MEP placed in one of two or more regions. 
 In those circumstances, if the Electoral Commission were to put forward its recommendation and Parliament was unhappy with it and rejected it because it believed that it did not offer the best distribution but that there was an alternative that would also achieve the same end, we would be stuck. We would be unable to take forward that alternative, and there would be a risk either of missing the 2004 election or of having to have hastily prepared primary legislation. 
 The hon. Member for Stone says that his party would give speedy passage to primary legislation; it is unclear to me how it would do that, given his objections to the principles behind this and the fact that if there was a disagreement—if Parliament were to disagree—there might be an alternative that the Electoral Commission would be happy with, in which case we might as well put that through the same process as before. Therefore, this allows the Lord Chancellor to come forward with an alternative distribution for Parliament to accept, but only if the Electoral Commission is happy with it and believes that it satisfies the requirement of clause 2(4)(b). However, Parliament could continue to reject it indefinitely, which would return us to the original situation, so this does not reduce the powers of Parliament in any way. This allows for an alternative distribution to be put forward in time for the 2004 election, if the Electoral Commission is happy with it.

William Cash: I think that the Minister appreciates that it is possible that these proposals will be rejected. Anything can happen in this world. I am simply making the point that what I have proposedincluding the guarantee that we would give a speedy response and get any future Bill throughis based on the fact that there are parts of this Bill and its mechanisms that do not pass a proper democratic test. Therefore, the reasons why
 Parliament might reject it are connected with the unsatisfactory nature of the Bill. However, contrary to what the Minister says, we accept the principle of the Bill because we would want to implement our international obligations.

Yvette Cooper: The order will put forward the distribution as recommended by the Electoral Commission. If Parliament chooses continually to reject that, we will either be unable to send the right number of MEPs to Europe at the 2004 elections and be in breach of Community law and our treaty obligations, or we will need to attempt to pass primary legislation. It would be unnecessary to reach that point if it were possible to resolve the matter more quickly by simply putting an alternative distribution to Parliament.
 This is a narrow provision, and it is highly unlikely that it will be used unless it transpires that there are several possible alternative distributions that meet the numbers game. In all probability, we would expect the Electoral Commission to come forward with a sensible recommendation that meets the requirement of clause 2(4)(b), and it will be for Parliament to decide on the matter at that point.

William Cash: We have said as much as we need to say about this set of amendments. In the light of what the Minister has said, I am prepared to withdraw the amendment; despite all my reservations on the procedure, she concedes that it would be followed in such a manner that although it would be preferable to have another Bill, it is unlikely that we will get one. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

William Cash: I beg to move amendment No. 24, in
clause 4, page 3, line 32, leave out 
 '(including provision modifying any Act)'.

Frank Cook: With this it will be convenient to take amendment No. 33, in
schedule, page 14, line 16, leave out 
 '(including provision modifying any provision made by or under any Act)'.

William Cash: The provision in brackets takes us back to the old problem of what I call Wolsey's revenge. On this occasion, we are considering a Henry VIII clause. The term 'Henry VIII clause' refers to an objectionable procedure that has been used by Governmentsincluding mine, I must admitfor a long time. Such provisions allow orders to be made modifying Acts of Parliament. Wolsey's revenge is shorthand for a case in which we apply a similar procedure with respect to European law, and I am seriously against its use.
 It sticks in my throat when a Henry VIII clause is used; I take the gravest exception to it. The reason why they are used must be that it is thought that there is too much congestion on the Floor of the House, if not in the Chamber or in terms of the Members of Parliament present, then certainly in terms of the vast quantity of legislation that we shove through. The disproportionality of attendance to volume of legislation is a point that should be considered. 
 It is clear that the objective of a Henry VIII clause is to prevent the necessity for primary legislation in the amending of Acts of Parliament. However, that raises 
 some serious questions about whether it is desirable to modify Acts by order. Subsection (3) says: 
''An order under this section may make consequential, supplementary, incidental, transitional or saving provision''
 and then adds: 
''(including provision modifying any Act).''
 If from that it is to be assumed that the modifications of the Act would be limited exclusively to provisions that are ''consequential, supplementary'' and so on, that would certainly mitigate my problem with the clause. However, I take exception to the provisions because I object to all the arrangements that have been put in place, and it is adding insult to injury to allow an Act that has been subject to such stringent criticism to be modified by an order. It is going just that bit too far. 
 Amendment No. 33 deals with a similar point. I do not need to repeat the principle; in the context of what I have said, the amendment is self-explanatory. I do not like the provisions. I would be interested to know why the Minister has decided that they should be included, and then perhaps we can take a decision on them in principle.

David Heath: I concur. I add one sentiment: that it makes nonsense of a consolidation Act if there is still provision to amend any other Act that may have been forgotten in the consolidation procedure. The European Parliamentary Elections Act 2002, which is supposed to have brought together all the relevant legislation, contains a substantial schedule of repeals and revocations. If there are omissions they should be in the measure so that we can deal with them as primary legislation. If they are not there should be no need for a provision of this kind, which is otiose. We have consistently argued against it in the context of other legislation and I shall oppose it in the Bill.

Yvette Cooper: I oppose the amendments. The provision is a standard format; it appears in electoral and other legislation whenever there may be unforeseen provisions that might need to be amended for effective implementation. It is true that we have recently had a consolidation Act but there may not be another for some time.
 The provisions to make the amendments in clause 4(3) ensure that changes can be made which are related to the changes that are provided for in clause 4(1). For example, it may involve changes to any references in the 2002 Act that may be affected by the changes to section 1 of that Act made under clause 4(1). There may be further consequential changes, which ideally should be in the Bill. There is a series of consequential amendments in clause 7, but it is possible that further such purely consequential amendments will come to light which have not been anticipated. The wording does not allow unrelated provisions dealing with an entirely separate issue to be made. The Joint Committee on Statutory Instruments can rule anything ultra vires if it goes beyond the bounds of being consequential and, ultimately, Parliament can reject the order, too. There is nothing untoward in the proposal, which is relatively straightforward and for which there are many precedents.

William Cash: Having heard what the Minister said, which was predictable, I am not impressed. Henry VIII provisions are objectionable and we will simply have to accept that for the time being they are part of our procedural arrangements and the way in which these things are done. I am prepared to withdraw the amendment in the light of what the Minister has said, but I put down a marker that the practice should be brought to an end as part of a package of procedural and legislative reforms because it is not a satisfactory way to legislate.
 Having put that on the record, I am conscious that many Acts of Parliament these days contain such provisions and I am not convinced that this is the time to press a matter of principle, about which so many people feel strongly, to a vote. However, unless the hon. Member for Somerton and Frome wants to intervene to convince me otherwise, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Yvette Cooper: The clause gives the power to the Lord Chancellor to make the order changing the total number of UK MEPs and the distribution of MEPs among UK regions as recommended by the Electoral Commission and in line with implementing our obligations under the treaty of Nice, which has been ratified in the UK Parliament. The Lord Chancellor cannot make an order changing the distribution, other than one that follows the recommendation of the independent Electoral Commission or that has the consent of the Electoral Commission if the original order is rejected by Parliament. The power to make consequential provisions will ensure that changes, which relate to changes in the number of MEPs, can be made to, for example, references in the 2002 Act.

William Cash: I have already explained our difficulties with clause 4, and it is not necessary to go into them again. It is, however, a very unsatisfactory way in which to legislate. We accept the obligations, which are implicit in the protocol, as a matter of principle, although I object to the manner in which they are being brought through. In due course, we may want to make some changes. There are many uncertainties about the number of MEPs who will be brought in. As I have said, the process is based on a hypothesis and will occur without referendums, and the procedures are deeply unsatisfactory.

Paul Farrelly: I will be in trouble with the Whips for intervening. The hon. Gentleman has been dropping his atomic bombs like hot cakes; has he cleared them with the Leader of the Opposition, who, if I am not mistaken, was only a short while ago bemoaning the fact that enlargement had been proceeding too slowly?

William Cash: As I have said repeatedly, the Conservative party and I are very much in favour of enlargement. There are no atomic bombs here. All I am
 doing is drawing attention to the fact that the procedures, which the Minister seeks to implement through the framework of the Bill, are deeply defective for a range of reasons, which have already been given. We want to see enlargement proceed and are prepared to see the protocol implemented; the Bill is about how that can be done. The Bill is not about the principle of whether the provisions of the international obligations prescribed by the protocol should have been subject to a referendum.
 It is no good the hon. Member for Newcastle-under-Lyme (Paul Farrelly), with whom I have worked well on a number of occasions as a neighbouring MP, seeking to put words into my mouth. The arrangement set out in the Bill is unsatisfactory for all the reasons that I have given. I stand by that and think that a new Bill would be a better way to deal with the matter. 
 We acceded to the Bill's principle on Second Reading. We have not yet dealt with the Gibraltar provisions, which we wholeheartedly support, although we will table amendments to deal with some of our concerns about the way in which they have been put together. It is an extremely sad day when Members of Parliament, recognising that there is a function to be performed in terms of applied criticism, construe that as wrecking the Bill. I am not wrecking the Bill; I am simply suggesting a better way. That is my point and I shall continue to make it. Having said that, the next step is for us to proceed to a vote.

David Heath: The next step is for me briefly to say that nobody should be under any illusions about the fact that we wish a Bill to succeed that gives effect to enlargement and the necessary changes. Most of the amendments that I have tabled and most of the criticisms that I have made focus on clause 4, which gives the process for the implementation of changes. It would be entirely inconsistent to make those criticisms yet accept the clause in its present form. I do not support the clause as it stands, but that is not to say that I do not support the Government's purpose in introducing the Bill or the end result. I should make it clear, however, that we are not happy with the way in which the Bill is constructed. This is the point at which we must express that concern, and I shall not support the clause.
 Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 9, Noes 6.

Question accordingly agreed to. 
 Clause 4 ordered to stand part of the Bill.

Clause 5 - Section 4: supplementary

William Cash: I beg to move amendment No.26, in
clause 5, page 3, line 39, after 'Act', insert 'or any other Act'.
 This is no more than a small probing amendment. An order made under clause 4(3) may include ''provision modifying any Act''. Clause 5 states: 
''This section applies to orders under section 4.''
 It also refers to an 
''order which contains amendments to section 1 of the 2002 Act.''
 If clause 4 contains the power to modify an Act by order, why should we not include the words ''or any other Act'' in this case? It is a small point, and I hope that it is a drafting issue. If there is a substantial reason, an ingenious parliamentary counsel's reason or a departmental reason for that, I would be glad to hear what it is.

Yvette Cooper: The reason for the wording is that, under clause 5(3), any order that affects the number and distribution of MEPsthe key issues in the Billmust be taken under the affirmative resolution procedure.
 The clause allows for consequential and supplementary amendments that are made by order to be taken under the negative resolution procedure, as long as they are not to section 1 of the 2002 Act. That is the standard procedure, and it is not unusual for simple consequential provisions to be dealt with in that way. 
 It is important to clarify, however, that even consequential amendments to section 1 of the 2002 Act—in effect, clause 1 of the Bill, which relates to the important issue of the number and distribution of MEPs—should be taken under the affirmative resolution procedure.

William Cash: I understand what the Minister says, but it rather makes my pointwhich is that distinctions are made based entirely on whether it is exclusively a section 1 amendment order that is being dealt with. The bottom line is that other quite significant provisions flow from the arrangements, yet they do not attract the affirmative resolution procedure, and are relegated to the bottom of the pile by way of annulment. However, having said that, I do not want to make too much of an issue of the matter. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Yvette Cooper: In discussing the amendments, we have debated extensively many of the issues raised by the clause. It provides that the relevant order must be a statutory instrument and be debated and approved by both Houses of Parliament. It also provides a mechanism for altering the draft order should either House fail to approve it, so that an alternative redistribution of MEPs can be arranged. No amendment to the draft order could be made without consultation with the Electoral Commission and, in the
 case of amendments dealing with the redistribution of MEPs, without their consent.

William Cash: Having already withdrawn my amendment relating to the power of recommencing the procedure, and because I want to make it clear that we are not attempting to make the entire machinery grind to a halt, but merely want to improve the way in which things are being done, I do not propose to oppose clause 5.
 Question put and agreed to. 
 Clause 5 ordered to stand part of the Bill. 
 Clause 6 ordered to stand part of the Bill. 
 Schedule agreed to. 
 Clause 7 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Kemp.] 
 Adjourned accordingly at thirteen minutes past Four o'clock till Tuesday 14 January at twenty-five minutes past Nine o'clock.